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Conflicting documents and when it’s OK to sign a vendor agreement
November 15, 2018
Conflicting documents and when it’s OK to sign a vendor agreement
               We included a managed service contract for remote monitoring services. They agreed to it, then incorporated it into their contract. Their contract states that their terms supersede ours. Is this acceptable?  Does it void the remote services language if it’s included as an exhibit?
               We are seeing more and more conflicting documents.  Several classes of subscribers insist on having their "vendor" agreement signed, no matter what the trade, but many will include your contract because it contains much more specific information and terms relevant to your contract performance.
               You can assume that the two documents are quite different, in fact they are likely to be opposite.  For example, the vendor agreement will require you to indemnify the subscriber, whereas your agreement should require the subscriber to indemnify you.  Many other terms change the terms of the Standard Form Agreement and you need to be very careful when signing a vendor agreement.  I know that sometimes it's unavoidable because you want the job, but you should try and get some modification, and at the very least you must understand what you are agreeing to when you sign that vendor agreement.
               If you don't want to engage me to assist with negotiations [and don't bother if the subscriber has already told you to take it or leave it] then be particularly careful with the allocation of risk provisions and make sure you have adequate insurance in place to cover your contractual commitments.  
               Try to get your Standard Form Agreement attached to the vendor contract.  Try to get both agreements signed, and if you do, the Standard Form Agreement clearly provides that to the extent its terms are inconsistent with any other document, the Standard Form Agreement governs.  
               Signing the vendor agreement is generally acceptable, but only for the installation.  If you are going to be doing any of the RMR items I suggest you insist on your Standard Form Agreement being signed.  Subscriber claims rarely come from installation; usually failure to respond to a signal.  
               If you are in doubt, run it by me.  Better safe than sorry.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
516 747 6700